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Stalcup v. CIA, No. 11-11250-FDS, 2013 WL 4784249 (D. Mass. Sept. 5, 2013) (Saylor, J.)

Re: Request for records pertaining to CIA's involvement in investigation of crash of TWA Flight 800 in 1996 Disposition: Granting defendant's motion for summary judgment
  • Exemption 5/Deliberative Process Privilege:  The court rejects plaintiff's argument that "the documents cannot be considered predecisional because they were created after the [CIA] video animation aired on CNN."  The court notes that Exemption 5 was upheld for the documents in another case that was affirmed on appeal. "Plaintiff has not presented any new arguments here that would cause this Court to second-guess the determinations of two other federal courts." The court also rejects plaintiff's contention that "the government may not invoke exemption 5 in a case involving allegations of fraud or governmental misconduct."  The court explains that "a party asserting the government-misconduct exception must 'provide an adequate basis for believing that [the documents] would shed light upon government misconduct.'"  Here, plaintiff "has not provided his rationale for believing that these documents, in particular, might aid him in shedding light on the alleged misconduct—either by including data that would refute the government explanation or revealing internal communications about that explanation, or for any other reason."  "[T]he Court finds that, even if there is a government-misconduct exception to the deliberative-process exemption under FOIA, plaintiff has not established any factual basis for the application of such an exception with respect to the specific documents at issue here."
  • Exemptions 6 & 7C:  The court affirms the withholding of "the names of both the FBI agents and the eye witnesses they interviewed."  First, the court notes that the "eyewitness accounts are inarguably reports that were prepared for law enforcement purposes."  This determination allows the court to "focus its analysis on the terms of exemption 7(C)."  The court next concludes, "eyewitnesses whose names have been withheld have a valid privacy interest."  The court rejects plaintiff's argument that "'[r]eleasing the names of all witnesses to the crash would clearly serve the important interest of shedding light on the government's malfeasance, as it would serve to invite those witnesses to speak out, contrary to the admonitions given to some of them by federal agents, and thereby set the record straight by commenting on the accuracy of the CIA analysis."  The court reasons, "[t]he only way the release of the names of the eyewitnesses could further advance the public interest of letting citizens 'know what their government is up to' is if those eyewitnesses were contacted and asked to make further statements."  "Such contact is the exact invasion of privacy against which Exemption 7(C) is intended to protect."
  • Adequacy of Search:  Plaintiff's challenge to the adequacy of defendant's search focused on the production of a photograph referenced in an FBI press release.  Defendant did not produce the photograph or any documents relating to it.  The court finds that defendant's declaration "describes the structure of the agency, the nature of the search, and the methodology employed by the agency in order to locate documents."  The declaration also indicated "that the search involved both computerized searched [sic] of records systems and page-by-page review of hard copy files."  The court notes, "a FOIA search is not required to be perfect; rather, it is required to be reasonable."  "Even if a search fails to locate a document that once existed, that failure does not in itself render the search inadequate."
Court Decision Topic(s)
Litigation Considerations, Adequacy of Search
District Court opinions
Exemption 5
Exemption 6
Exemption 7(C)
Updated August 6, 2014